It was Emma Cunliffe’s 2011 piercing analysis of the 2003 NSW trial of Kathleen Folbigg for the alleged murder of her four children which opened the window on to her trial’s serious shortcomings.
The Australian-educated Canadian legal academic wrote (on page 2): ‘In this book I suggest that Folbigg has been wrongly convicted of killing her children. However I cannot say how the Folbigg children died. Given the passage of time and uncertainties within the evidence, I do not venture the truth that Folbigg waits for’.
Kathleen Folbigg has now waited over twenty years for the truth to be known. In the minds of the over 90 leading Australian scientists who supported the petition for a new inquiry and in the mind of the author of a new book on her case, her moment of truth is now only four months away. On November 1, 2022, retired former Chief Justice of NSW, Thomas Bathurst AC, FRSN will begin a new inquiry into the matter. He will be presented with convincing new evidence of a genetic abnormality in Mrs Folbigg’s two daughters that can explain why Sarah and Laura Folbigg died.
The new book by journalist, author and past crime reporter, John Kerr, entitled ‘The Big Folbigg Mistake: A mother’s fight for justice’ was published this July. In it, Kerr first retraces the story of Kathleen Folbigg’s life, marriage and raising a family; hardly earth-shattering you might think, but here it humanises a woman often depicted in the media as some sort of witch. He analyses her trial, appeals and the 2019 Blanch inquiry and in doing so helps to explain how circumstantial and contested evidence led a jury to find her guilty.
The Bathurst inquiry has set aside two weeks for public hearings and thus it must be that the inquiry will be focussed on the new genetic evidence and probably will not be revisiting the extensive circumstantial evidence that led to what surely will finally be shown to be a wrongful conviction. Do not expect the report of the Bathurst inquiry to explain where or how the NSW Supreme Court, the Court of Criminal Appeal, the High Court of Australia and Judge Reginald Blanch got things wrong. For that you need to read John Kerr’s book.
Here you will find laid out that tortuous path with chapters that cover the police investigation, the trial, similar cases that were running in the UK at around the time of the Folbigg trial as well as one shortly afterwards in the Victorian Supreme Court, the evolution of the understanding of sudden infant death syndrome, the contested evidence on the causes of the Folbigg’s children’s deaths, and the 2019 Blanch inquiry. Of particular value for the non-scientist are Kerr’s two chapters on genetics, one a gentle introduction to the principles of genetics and the other an enlightening and easy to read account of the new findings that now should lead to Kathleen Folbigg’s freedom. Also of importance is a well-balanced chapter devoted to the diary evidence that was used so effectively by the prosecution.
When you finish reading this book, you may share my sense that Mrs Folbigg’s lawyers were forced into a situation of seeking to prove her innocence – a reversal of the ‘innocent until proven guilty’ principle. For this situation one can probably place most blame on UK paediatrician Dr Roy Meadow. At the time of Kathleen Folbigg’s trial, Meadow’s dictum – ‘One sudden infant death is a tragedy, two is suspicious and three is murder until proved otherwise’ – had been widely promoted and was yet to be discredited. John Kerr’s book summarises the harm that this now totally discredited teaching has done in the UK, Canada and Australia.
Many commentators hold that the wrongful conviction of Lindy and Michael Chamberlain is Australia’s worst such case. If so, how will we react to the overturning of the conviction of Kathleen Folbigg who is in her 20th year of imprisonment? Justice Trevor Morling who conducted the Royal Commission into the Chamberlain convictions placed his hope for the future in reform of expert evidence in Australia. This has not yet happened. Morling also wrote (at page 311) that it was ‘highly desirable that complex scientific evidence called by the prosecution should be so carefully prepared and expressed that the necessity for the defence to challenge it is reduced as much as possible’. John Kerr’s book shows that neither has this happened.
Will the overturning of Kathleen Folbigg’s conviction be the catalyst for change? One can only hope so. Criminal justice systems do not do apologise nor generally do they conduct retrospective analyses to learn what has gone wrong. As also argued here not long ago, Kerr recommends instead that we need to have a fairer and faster system of handling post-conviction appeals (i.e. petitions to the Governor) via the establishment of a criminal cases review commission, copying the UK but sadly 25 years late.